The Last Abortion Clinic in Mississippi Will Stay Open

Today, the Fifth Circuit Court of Appeals prevented an anti-abortion law, which would have closed the last abortion clinic in Mississippi, from going into effect. For now, the clinic will stay open.

"This is a great decision," Julie Rikelman, litigation director at the Center for Reproductive Rights and the lawyer who argued the case in front of the Fifth Circuit, told Cosmopolitan.com. "It means women in Mississippi can still access legal abortion care in their own state."

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At issue in the case, Jackson Women's Health Organization (JWHO) v. Currier, was a state law requiring that abortion providers have admitting privileges at local hospitals. JWHO v. Currier was one of several challenges to anti-abortion laws before the Fifth Circuit this year. In March, a Fifth Circuit three-judge panel heard a similar challenge out of Texas and came down the opposite way, holding that the admitting privilege requirement was constitutional and did not place an undue burden on Texas women who, the court said, could simply drive 150 miles to the nearest clinic. Reproductive health care providers are currently waiting to hear if the full Fifth Circuit court will reevaluate the Texas law.

Admitting privileges laws are increasingly popular anti-abortion tactics. On their face, they sound logical and in the service of women's health, while in purpose and practice they have the effect of shuttering abortion clinics. Mississippi is an illustrative example: When the state legislature passed its admitting privilege law, Mississippi Lieutenant Governor Tate Reeves issued an official statement supporting the act and saying that it "should effectively close the only abortion clinic in Mississippi." The governor promised to sign the bill, pledging, "I will continue to work to make Mississippi abortion-free." After the act was challenged, Lt. Gov. Reeves posted on his website, "the Legislature took steps to end abortion in Mississippi by requiring doctors performing abortion to have admitting privileges at a local hospital. This measure not only protects the health of the mother but should close the only abortion clinic in Mississippi."

The intent of the regulation nearly worked. The only doctor at the JWHO clinic regularly providing abortions (known in the case as Dr. John Doe) began the process of applying for admitting privileges soon after the act was signed into law. When a second doctor, Willy Parker, joined the clinic staff, he too began trying to apply for privileges.

Neither doctor was successful. One hospital simply wouldn't send an application to the clinic. Another hospital received the doctors' application but didn't act on it. Because doctors at the clinic were unable to gain admitting privileges, the Mississippi Department of Health began making moves to shut the clinic down, and the clinic petitioned for a temporary restraining order or injunction to prevent the law from taking effect. The clinic won in district court, and the law was enjoined, meaning it could not be enforced by the state. Mississippi appealed that decision to the Fifth Circuit.

Today the Fifth Circuit affirmed the injunction. In deciding the case, the justices looked at two primary factors: whether the law at issue was rationally related to a legitimate state interest, and whether the law placed an undue burden on women seeking abortion. Having already evaluated admitting privileges in Texas, the Fifth Circuit again said that the Mississippi law met the rational basis requirement. What made the Mississippi case different, though, was the fact that the law would mean the state's last abortion clinic would close — that made the question of whether the law was unduly burdensome more urgent.

The state's key argument in this case was that the admitting privilege requirement was not unduly burdensome because Mississippi could travel to other states for abortions. Cities in Louisiana and Tennessee less than three hours from Mississippi still have abortion clinics, and the state said that if it wasn't unduly burdensome for Texas women to have to drive 150 miles for an abortion — this was before a clinic in Corpus Christi shuttered, making the drive twice that for many Texans — Mississippi women could do the same.

The court rejected that argument. In evaluating the question of whether the Mississippi law was unduly burdensome, it looked at Mississippi alone, saying the presence of out-of-state clinics should be irrelevant to the question of whether a state's own laws limited a constitutional right in that state. The court concluded that "a state cannot lean on its sovereign neighbors to provide protection of its citizens' federal constitutional rights."

"The fact that the court said states can't point to clinics in nearby states is very important," Rikelman said. "It's very basic: Each state has to comply with the Constitution."

While this decision is limited to this particular clinic, it strikes an important blow to the common argument that one state's abortion restrictions are constitutional because women can obtain abortions across state lines, an argument Rikelman says she's heard in cases outside of Mississippi. Unable to overturn the right to abortion entirely, the modern anti-abortion strategy has been to chip away at that right through over-regulation, and by passing supposedly rational laws that are in fact carefully crafted to close down abortion clinics. The Fifth Circuit's affirmation of the basic right to abortion is an important counter to that strategy.

"At a minimum, states can't eliminate the right to abortion, and they can't do it in a backdoor way," Rikelman said. "This is not a decision that says you can't ban abortion, but you can do anything but. This says even if it's not a straight-up ban, if the effect of the regulation is to close the last clinic in the state, it's probably unconstitutional. It recognizes that states can't eliminate access in ways other than straight-up bans."

While this is indeed a victory for that embattled abortion provider, it draws the line of what's an "undue burden" startlingly narrowly. Do burdens only become undue once they are set to close the last clinic standing?

The question of what constitutes an "undue burden" will be at the heart of litigation around abortion restrictions for the foreseeable future. It's hard to stomach the idea that it may be constitutional to whittle a fundamental right down to the nub, as long as there's at least one nub left in each state.

The bar for abortion access victories may be low, but at least it hasn't gotten lower. And the women of Mississippi will still be able to access a procedure that is profoundly important and personal, one of the most common in the nation, and their constitutional right.